MRS DENISE FORCER v BAKERS, FOOD & ALLIED WORKERS UNION [2004] UKEAT 0634_03_1806

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0634_03_1806Case No Appeal No. UKEAT/0634/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS DENISE FORCERAPPELLANTBAKERS, FOOD & ALLIED WORKERS UNIONRESPONDENT
Before
Mr Justice Hooper Mr D J JenkinsDate 18 June 2004
[1]APPEARANCES For the Appellant MR C BOURNE (of Counsel) Instructed by: Messrs Archers Solicitors Barton House 24 Yarm Road Stockton on Tees TS18 3NB For the Respondent MS S MACHIN (of Counsel) Instructed by: Messrs Whittles Solicitors Pearl Assurance House 23 Princes Street Albert Square Manchester M2 4ER SUMMARY Unfair Dismissal Compensation Compensation payable pursuant to section 67 (1) or the Trade Union and Labour Relations (Consolidation) Act 1992 and rule 8 of the Employment Appeal Tribunal Rules 1993, following a finding by and Employment Tribunal of "unjustifiable discipline" under section 66. THE HONOURABLE MR JUSTICE HOOPER The Applicant applies for an award of compensation to be paid to her by the Respondent pursuant to section 67 (1) or the Trade Union and Labour Relations (Consolidation) Act 1992 and rule 8 of the Employment Appeal Tribunal Rules 1993. By virtue of section 67, upon a finding of "unjustifiable discipline" under section 66, this Tribunal has power to award such compensation as it "considers just and equitable in all the circumstances" (ss. (5)), subject to any reduction for failure to mitigate loss (not relevant in this case) or because the Applicant caused or contributed to the infringement (ss. (6) and (7)).[2]The finding of "unjustifiable discipline" in favour of the Applicant was made by an Employment Tribunal held at Newcastle upon Tyne. Copies of the decision were sent to the parties on 7 May 2003.[3]The Tribunal found that the Applicant had been disciplined in the following ways: by being expelled on 12th July, 1999 from the Union, by the Union refusing to cash cheques representing subscriptions sent by her in September and October 1998, by being deprived in about the spring of 1997 and thereafter by the Union of access to the complaints procedure and by being deprived by the Union of access to annual returns, to her membership records and to Gold Card membership.[4]The Tribunal held that the substantial reason for her expulsion was because she had asserted that Mr Rooney, the branch secretary, had contravened the rules and her rights as set out in a letter dated 7 June 1999. The substantial reason, so the Tribunal held, for the treatment of the cheques and for the denial of the rights asserted in the letter was because she had persisted in her protected act of asserting that Mr Rooney had contravened the rules. Thus under section 65(2) the discipline was unjustifiable.[5]The application is made to this Tribunal (rather than the Employment Tribunal) because, following the hearing, the determination infringing the Applicant's right not to be unjustifiably disciplined had not been revoked by the Respondent and/or the Respondent had failed to take all the steps necessary for reversing anything done for the purpose of giving effect to the determination (ss. (2)). The decision by the Respondent not to revoke the expulsion was communicated to the Employment Tribunal and the Applicant on 8 July 2003, later than the Employment Tribunal had ordered (wrongly ordered according to the Respondent).[6]On 2 January 2004 the Respondent gave as its reason (64) for not revoking the expulsion, the fact that on 29 January 2003 Mr Marino the General Secretary of the Union had made a determination that the Applicant could not be readmitted to membership because she had secured employment outside the baking or allied trade industry. The determination had, it appears, been made on the second day of the Employment Tribunal hearing following evidence from the Applicant (found by the Tribunal to have been earlier deliberately obtuse on this point) that she had found such employment. The formal determination was not communicated to the Applicant or to the Tribunal, which, in any event, had ruled that entering employment outside the industry, under the Rules, did not result in or justify expulsion (69, paragraph 13).[7]There was no dispute before us that the minimum award which this Tribunal could make was £5,000 (or possibly £5,600) and the maximum award £18,000 (or possibly £18,600).[8]There was no claim for pecuniary loss. The Applicant submitted no evidence further to the evidence before the Tribunal (other than on one point which did not need to be considered).[9]There was no dispute that this Tribunal could include in its award, a sum representing an amount for injury to feelings. There was also no dispute that this Tribunal could make an award to include aggravated damages. Mr Bourne referred us to Zaiwalla v. Walia [2002] IRLR 697 , in which the EAT held that an award of aggravated damages of £7,500 was appropriate in the light of the "most inappropriate" conduct of the respondent in defending the proceedings.[10]Mr Bourne submitted, and Ms Machin did not disagree, that the relevant period for any compensation reflecting injury to feelings started in about the spring of 1997 and that the relevant period for any compensation reflecting aggravated damages started (in particular) after the Applicant had initiated the proceedings in the Employment Tribunal against the Respondent.[11]Mr Bourne, on behalf of the Applicant, submitted that the guideline awards in cases of discrimination provided a relevant guideline in cases of this kind. Without wishing to underestimate the importance to the Applicant of what occurred to her, we do not find those guidelines particularly helpful.[12]The diligence of Counsel revealed only one reported case under section 67:- Bradley and others v. National and Local Government Officers' Association [1991] IRLR 159 . It offers no help in this case.[13]Ms Machin submitted that the Applicant's expulsion from the Union was contributed to by her own actions. In paragraph 14 of her skeleton argument she set out at three such reasons. We reject that submission for reasons which we shall return to later.[14]At the conclusion of the hearing we announced that, for reasons to be handed down, the Tribunal had unanimously decided to make an award of compensation in the sum of £12,000. We heard arguments about costs and we return to that issue later in this judgment.[15]We turn now to the events which led to the decision of the Employment Tribunal that the Applicant had been unjustifiably disciplined.[16]The Applicant began employment in 1988 at Sweet 'n' Savoury Frozen Foods, now known as Hibernia Foods. In July 1989 she joined the Respondent Union.[17]In November 1996 she verbally reported that a male supervisor, Mr Shaw, also a member of the Union, had harassed her. Mr Wilson, a shop steward, advised her to put her grievance in writing to the manager, and request a formal hearing. She did that. Included within the bundle (88) is a hand-written account of the allegations made by the Applicant against Mr Shaw. In summary the Applicant complained of abusive and very offensive remarks and of the use of swear words. She also wrote that his behaviour had persisted over a period of some three years (86).[18]In the same month she made two requests for a copy of the Union's Rule book without success.[19]By late 1996, dissatisfied with the lack of support from the Union, she instructed her own solicitors. It seems clear that she had done that when she realised that Mr Rooney and Mr Wilson were going to "side with the company", to use her words.[20]On 31 January 1997 she went "on the sick".[21]On 7 March 1997 the Applicant received notification from the company that her complaint had in effect been rejected and that Mr Shaw had not been disciplined. On 8 May 1997, while on the sick, she submitted a letter of resignation to the Company and her employment terminated on notice on 15 May 1997.[22]On 11 March 1997 the Applicant wrote to Mr Rooney making a complaint against Mr Shaw and requesting a number of items. There was no reply. On 22 April 1997 she repeated those complaints. She wrote that the Union representative, Mr Wilson, had been supportive at first at the start of the grievance procedures as also had been Mr Rooney. She wrote that when the grievance procedures reached the manager "their attitudes changed" (87). Although Mr Wilson had earlier informed the Applicant in front of witnesses that Mr Shaw "could not get away with his harassment", Mr Rooney and Mr Wilson had sided with the company's decision and have done nothing at all to help me during this four and a half month Grievance". She wrote that she would now be taking her case to the Industrial Tribunal and asked "Why is Mr Rooney and Mr Wilson on the company's side in an Industrial tribunal they're my Union Reps????".[23]She wrote again on the 8 May 1997 thanking Mr Marino for a copy of the Rule books and complaining again about the lack of Union support. She also asked for details of how she claimed sickness benefit as laid down in the rules. There was no reply to that letter.[24]On 11 June 1997 she wrote to Mr Marino telling him that she intended to make an application to the Industrial Tribunal, she having earlier told the Union that she had instructed her own solicitor. In the letter of the 11 June she also asked what help she could expect from the Union. Mr Marino replied on the 20 th June 1997 in the letter suggesting (contrary what had been written earlier by the Applicant) that her case would be handled by the Union solicitors. He suggested that she should contact Mr Milne for details about a solicitor.[25]On 22 October 1997 the Employment Tribunal dismissed the Applicant's complaints against the company. At the hearing, the company called as witnesses a number of persons including Mr Shaw "and, to her evident distress, Mr Rooney and Mr Wilson who gave evidence against her." (Paragraph 4H of the Tribunal's May 2003 decision, 53).[26]On 20 July 1998, she wrote to Mr Milne referring to the several complaints which she had about the conduct of certain Union members and the fact that she had followed the rules by sending her complaints in writing to Mr Rooney, Branch Secretary. She noted that she had "not received any reply to any correspondence, sent Recorded Delivery to Mr Kevin Rooney" (95). The correspondence to which she is there referring appears to have started on 11 March 1997. She asked Mr Milne to carry out a thorough investigation as to why Mr Rooney was unwilling to reply, acknowledge or act upon her correspondence. As the letter shows, by now she had contacted the Commissioner for the Rights of Trade Union Members who had advised her to contact him again if the Union failed to act in accordance with the rules.[27]On 28 July 1998 Mr Milne acknowledged the letter. He wrote that he was taking steps to investigate her concerns and hoped to be in a position to respond by the 14 August. On the 17 August he wrote: "Before I am able to activate a complaints procedure in accordance with Rule 11.46 of the Rule Book (a copy of which is attached), I am afraid that I do need to clarify the situation with regard to your membership".[28]The letter continues:
"According to our records you have not worked since January of 1997 and were in receipt of Union Sick Pay up to and including 15 May 1997. Since that time we have no record of you having paid any subscriptions to the Union and, if that is so, then your membership has lapsed."
[29]He asked the Applicant to clarify her membership position. In reply she wrote that she was on certified sick leave from January to June 1997 and that she had been unemployed since June 1997. She pointed out that she had repeatedly made claims for Union sickness benefit and unemployment benefit and noted, contrary to what had been set out by Mr Milne in his letter of 17 August 1998, that payment for sickness benefit had been received (for the first time) in May 1998. She noted that Mr Milne was questioning her status as a Union Member and she quoted rule 5.1.5. She pointed out that there was no obligation to pay contributions whilst certified sick or out of work. She therefore stated that, contrary to what Mr Milne was saying, her membership had not lapsed and she was still a member of the Union. She therefore asked him to continue to investigate her complaints. She also said that she would be commencing temporary part-time employment on the 3 September 1998 and asked him therefore to send her details regarding the payments of her subscription so as to continue with her Union membership.[30]On 26 August 1998 she received from the Union £35 in unemployment benefit covering the earlier period. In September 1998 she made a request for a Gold Card and reminded Mr Milne of the matters outstanding.[31]Having received details about levels of Union subscriptions, on 21 September 1998 she sent a cheque for £7.20 for continued membership with a request to provide a Union card.[32]On 21 September 1998 Mr Milne queried whether she had made the necessary subscription payments and also asked the nature of her temporary part-time employment. On 9 October 1998 she replied that she was still registered at the Unemployment Benefit Office "seeking full time work in the same occupation, i.e. packer". She reminded Mr Milne of the outstanding matters, enclosed a further cheque for £8.75 for continued membership and requested a Union card.[33]Neither of the cheques were cashed.[34]On 23 October 1998 Mr Milne wrote: "I am not convinced you are a member of the Union following your unemployment in accordance with our rules. Having said that however, I do not believe that it is necessary material for your complaint".[35]The letter continued: "I am taking the steps to convene a branch committee meeting to consider your complaints against Mr Rooney and Mr Wilson. I will advise you of the date, time and venue of the meeting in due course. You will be welcome to attend the meeting to put forward your case should you so wish to. If however, you wish to deal with the matter by means of written submission, please let me know whether there are any additional documents you wish to put".[36]There then followed correspondence in which the Applicant's complaint was referred to the National President and reminders requesting responses were sent by the Applicant The response to this correspondence finally came on 12 July 1999 when the Applicant was told that she was not a member. The letter stated:
"Your membership lapsed when you ceased employment with Sweet n Savoury Frozen Foods Limited."
This had occurred on 8 May 1997.[37]It is clear that the Applicant is deeply aggrieved by the failure, as she sees it, on the part of her Union to support her in the grievance procedures and at the Tribunal and by the fact that Mr Rooney and Mr Wilson decided to support the company and give evidence against her.[38]To summarise the history of the matter, from about 11 March 1997, if not earlier, the Applicant had complained to the Union firstly about the behaviour of Mr Shaw and from 22 April 1997 about the behaviour of Mr Rooney, Mr Wilson and Mr Shaw. These complaints were never investigated. As the Tribunal found there were many letters to which "Mr Rooney did not have courtesy even to reply to or acknowledge." Although Mr Rooney attended at the hearing before the Tribunal of her complaint against the Union he was not called to explain himself. In the words of the Tribunal (paragraph 5J, 56):
"We conclude for reasons that maybe significant, [Miss Machin] deliberately chose not to [call Mr Rooney], probably, we can conclude, because there was no reasonable explanation that he could give."
[39]As the Tribunal stated (paragraph 9), it was required to establish whether or not the Applicant was a member of the Union at various times. As the Tribunal pointed out many of the rights identified in section 64 (2) could only be exercised by somebody who at the time was a member of the Union. For example a complaint that a person has been expelled from the Union requires a finding that he was a member of the Union at the time of the alleged expulsion. Likewise if the Union is alleged, as here, not to have cashed the subscription cheques, then it is necessary to know whether at that point in time the person is a member.[40]As to this the Tribunal said (paragraph 9); "It is noteworthy that the respondent shifted its ground during the course of hearing. Initially the respondent's submission was that there was no determination or purported determination that she was expelled: In addition Mr Milne's witness statement did not assert that there was a right to lapse the applicant's membership under the rules and thus it was at one stage the respondent's position that the applicant's membership had never terminated at all. That position altered when Mr Milne gave evidence that the applicant's membership had lapsed. It altered further when, for the first time, during closing submissions the respondent's counsel argued a further possibility – that the applicant's membership terminated automatically when she started paid employment as a teacher's assistant outside the bakery industry on 3 September 1998."[41]It will be remembered that following the hearing in January 2004 the Respondent purported to rely on a determination made by Mr Marino that her membership had ceased for this reason (albeit uncommunicated to the Tribunal or to the applicant).[42]The Tribunal had considerably difficulty interpreting the rules, but having sought to make sense of them, it concluded that she had been under no obligation to pay any Union subscription until 14 August 1997. She should then have paid a reduced rate until 3 September 1998 at which time she obtained part-time employment. Although the Tribunal noted that she had not paid the £1.80 per quarter due in the period from 14 August 1997 to 3 September 1998 she had not received, contrary to the Rules, any sickness benefit or unemployment pay from the Union. She had not received the former until 26 March 1998 and the latter until 26 August 1998, nearly a year after her entitlement had come to an end.[43]The Tribunal considered the Respondent's submission that the Applicant's membership had "terminated by lapsing" (paragraph 11). It was accepted that there was no express provision in the rules for a membership to lapse for non-payment of contributions. But it was submitted "that it was custom and practice for membership to lapse for non-payment". The Tribunal referred to Mr Milne's letter of 17 August 1998 where he referred to the possibility of lapsed membership. However in his witness statement for the Tribunal he accepted that the statement in the letter concerning lapsed membership was based on a misunderstanding of the Rules. However Mr Milne referred in his evidence to the custom and practice and during his evidence stated that her membership had lapsed six months after 31 January 1997, when she had gone on the sick, i.e. on 31 July 1997. The Tribunal pointed out that this could not be right on a strict interpretation of the rules. The Tribunal noted that "if her membership lapsed at all under the supposed custom and practice, it could not have lapsed until six months later on 14 February 1998". The Tribunal noticed the inconsistency with what was stated in the letter of 12 July 1999, namely that her membership had lapsed when she had ceased employment with Sweet 'n' Savoury, i.e on 15 May 1997. The Tribunal noted that Mr Milne was unable to identify a specific occasion when he gave specific consideration to her membership. The Tribunal concluded on this aspect of the case (paragraph 12) that there was no provision in the rules for membership to lapse or terminate automatically. The Tribunal went on to reject the contention that the Applicant's membership had terminated by reason of lapse.[44]The Tribunal then considered whether the Applicant's membership had terminated as a result of entering employment outside of the baking industry on 3 September 1998. The Tribunal concluded, following examination of the Rules, that employment outside of the industry was not inconsistent with membership of the Union.[45]The Tribunal then asked itself (paragraph 14) whether there had been a termination of her membership by reason of some determination under the rules that she should be expelled. The Tribunal examined the records and found no evidence that prior to 12 July 1999 any such determination had been made. The Tribunal noted that until that letter "there was never any notification of a decision having been made that the Applicant's membership had come to an end by whatever means." As to that letter the Tribunal noted its earlier conclusion that the assertion that membership had lapsed when she ceased working for Sweet 'n' Savoury was "untenable". In the words of the Tribunal:
"Thus it seemed to the Tribunal to inform a member that her membership had lapsed, when it had not in fact, and that she was then not a member in response to a specific request for membership benefits does, did in this case, amount to expulsion."
The letter thus satisfied section 64 (2) (a) of the Act.[46]Having examined (paragraph 15) the remaining aspects of the claim and finding them well founded, the Tribunal continued (paragraph 16):
"There is then the issue as to the manner in which the respondent dealt with the applicant's complaints, in particular against Mr Rooney from 1997 onwards. Section 64(2) (d) provides that: 'an individual is disciplined if a determination or purported determination is made that she should be deprived to any extent of, or of access to, any benefits, services or facilities'. Rule 11.4.6 sets out clearly how complaints against a union official should be dealt with. We record that there was a failure to respond to the complaint and a failure to deal with it in accordance with the rule in that Mr Milne imposed a requirement that was not contained within the rule that she should make further written submissions. We concluded, as a matter of fact, that this was not merely inaction on the part of the Union but that a decision was made that her complaints should not be dealt with and that her complaints should be ignored. That, in the tribunal's view mounted to a determination and not merely a purported determination."
[47]The Tribunal further noted (paragraph 18) that:
"If it be suggested that her complaints against Mr Rooney were false or made in bad faith, we record that no evidence to this effect has been given"
[48]Evidence of the Applicant's deep sense of grievance is amply demonstrated by her persistence over many years in trying to obtain "justice" from the Union and by the fact that her "fight" has cost her a great deal of money. We do not know how much she had to spend at the Industrial Tribunal in 1997 when, as she saw it, she had to seek private help because of the Union's attitude towards her complaint against the company. Nor do we know how much she spent initiating the proceedings against the Union in 1999.[49]On 6 March 2000 there was a preliminary hearing before an Employment Tribunal at which the Respondent took the objection that her complaints against the Union were out of time. Again we do not know how much she paid for representation at that hearing.[50]On 14 May 2000 the Tribunal upheld the Respondent's objection. Demonstrating again her persistence, she brought an appeal against that decision to the Employment Appeal Tribunal. Following a preliminary hearing, the Tribunal presided over by HH Judge Serota, allowed the appeal at the full hearing and ordered: "This case should go before the Employment Tribunal for a hearing on the merits" (paragraph 31).[51]Notwithstanding that order, the Respondent asked for and was given a further hearing before the Employment Tribunal to argue as a preliminary issue that parts of the Applicant's claims were out of time. The Tribunal rejected that argument, holding that the matter should be left to the full hearing. The Tribunal found all her claims to have been made within time (paragraph 19).[52]We have been provided with a schedule of her legal costs, starting with the costs of the full hearing before HHJ Serota and lay members and including the costs of that hearing up to and including the hearing before us. The amount came to just under £17,000. Faced with the intransigence shown by the Union and the many obstacles that the Union has put in the way of a resolution of her complaints, many people would have long since abandoned the fight. The Applicant did not and she has now been vindicated.[53]Mr Bourne submitted that the award of compensation should be at or near the maximum level. He put forward the following reasons in paragraph 13 of his skeleton argument:(1) the Respondent has, from the outset treated the Applicant's rights as a member with disdain and contempt. No proper explanations for the unions conduct towards here were provided either to her or in the course of the proceedings before the tribunal. Indeed, the subject of the original complaint, Branch Secretary Mr Rooney, was present throughout the proceedings but was not called to give evidence. Neither was Mr Hampton, the author of the letter of 12 July terminating her membership, called to explain why that letter was written (see paragraph 6 of the decision on page 61).(2) The Respondent's position in relation to the Applicant's membership and/or its termination changed throughout the proceedings ( see paragraph 9 at page 66).(3) the Respondent advanced arguments for which there was no evidence and for which there was no provision in the rules ( see paragraph 11-14 at pages 67-9). This argument was persisted in despite the finding of this Tribunal at the earlier appeal (paragraph 25 at page 28) that the Respondent was:
"wholly unable to provide any convincing explanation as to how it was [the Applicant] came to be excluded." (4) in relation to the tendering of payment of union subscriptions (paragraphs 1(i)(n) and (q) Further and Better Particulars at page 35) the tribunal found that the Respondent had not tendered any evidence or explanation why the cheques were not accepted as subscription or returned to her in circumstances where the reason is particularly within its own knowledge. (5) at the earlier appeal, this Tribunal decided that the Applicant's claims were in time ( see paragraphs 25 and 30 of the judgment at pages 29 and 31). Despite this, the Respondent persisted in making a further application to the employment tribunal to strike out parts of the claim as being out of time (pages 40-43) causing further delay in the hearing of the application and causing further distress to the Applicant ( see paragraph 9 of the Applicant's witness statement at pages 171-2). (6) notwithstanding the judgment of this Tribunal and complete failure by the Respondent to call evidence on relevant matters, the applicant was threatened with an application for costs on the grounds that it was unreasonable for the Applicant to pursue her claims ( see pages 171-2). "
[54]We find that all these reasons are well-founded.[55]We now turn to paragraph 14 of the skeleton arguments in which Ms Machin sought to show that the Applicant had caused or contributed to the infringments of which complaint has been made by the Applicant. In paragraph (i) reference is made to the letter of 20 June and it is said that the Applicant did not contact Mr Milne for details of the Union solicitor but "made private arrangements for representation for her forthcoming Tribunal". We do not see how in any way that contributed to the complaint that she was unjustifiably disciplined. She was driven to instructing her own solicitor because Mr Wilson and Mr Rooney had not supported her in the grievance procedure and did not support her before the Tribunal.[56]It is then said in (ii) that she failed to reply to a letter dated 12 June 1998 from Mr Marino. The substance of that letter is set out in paragraph 5(l) (57) of the Tribunal's reasons. The paragraph reads: "On 12 June 1998 Mr Marino replied but failed to deal with her specific complaint made in the letter that Mr Rooney had failed to follow the complaints procedure. He appeared to be asking for conformation that she had followed his recommendations in his letter of the previous year (30 April 1997) that she should raise the complaint under rule 11.46 and seek representation from Mr Milne for her Employment Tribunal application, which had in fact been heard over 8 months previously. It is right to observe that she had not copied her correspondence in 1998 with Mr Rooney to Mr Marino".[57]We do not see how this failure in any way establishes that she either caused or contributed to the infringements complained of.[58]We turn to the submissions made by Ms Machin in paragraph (iii) of her skeleton argument:
"It is said that the Applicant failed to respond to Mr Milne's letter of the 23 October 1998 in which he indicated that he was prepared to convene a branch committee meeting to consider her complaints."
This letter was considered carefully by the Tribunal (see paragraph 5(u), 59). The Tribunal wrote:
"Although the applicant did not respond to the invitation in the last sentence in that letter, we note that Mr Milne did not in fact take any steps to convene a branch committee meeting nor of course did he advise her of any date, time and venue. His explanation before the tribunal that it was that he was waiting to see if there were any written submission made by the applicant and that he was busy at that time with other problems. The tribunal notes that his letter did not state that the provision of a written submission was a precondition to him convening a branch committee meeting. The applicant had complied with Rule 11.4.6 by putting her complaint in writing."
[59]This finding, not having been appealed, is binding upon the Respondent and gives a complete answer to this submission.[60]Ms Machin sought in the course of argument to argue, in addition to these three points that the Applicant's "obtuseness" in failing to say before the Tribunal hearing where she was working, contributed to the infringement. It seemed to us that it was to late to add that to what was already set out in paragraph 14. Even if we are wrong about that, this failure does not, in the light of the findings of the Tribunal, have any impact on the amount of compensation.[61]We then turn to the issue of what compensation should be ordered. We take the view that the Respondent has behaved in a manner which is quite unbecoming an important and leading trade union. At branch level and at the level of senior management there has been a long history of failure to reply to letters and deal properly with the complaints. At no stage has the Respondent apologised notwithstanding the findings of the Tribunal. Before this Tribunal the Respondent sought to justify its stance by reference to an argument which the Tribunal had properly projected. We take the view that an award of compensation of £12000, made up of £7000 for injury to feelings and £5000 aggravated damages, is the appropriate award.[62]We turn to the issue of costs. Mr Bourne seeks an order requiring the Respondent to pay the costs, to be assessed if not agreed, of the costs of three hearings. He does not seek the costs of the institution of the proceedings, of the hearing upholding the Union's objections to jurisdiction, of the Preliminary Hearing before this Tribunal and of the appeal hearing before this Tribunal, presided over by HHJ Serota. He does, however, seek the costs for the further hearing which took place before the Tribunal on 6 March 2000. As we have already said, notwithstanding that the Employment Tribunal had ordered a hearing on the merits, the Respondent sought further to argue that parts of the Applicant's claim to have been unjustifiably disciplined were out of time. That application was rejected and the costs of the hearing were reserved. He also seeks an order for the costs of the main hearing in January 2003 as well as of this hearing.[63]Section 34 of the Employment Tribunals Act, 1996 provides that Appeal Tribunal procedure rules:
"may include provision empowering the Appeal Tribunal to order a party to any proceedings before the Appeal Tribunal to pay to any other party to the proceedings the whole or part of the costs or expenses incurred by the other party in connection with the proceedings where in the opinion of the Appeal Tribunal: (a) the proceedings were unnecessary, improper or vexatious, or (b) there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings."
[64]Subsection (2) provides except as provided by subsection (1):
"Appeal Tribunal procedure rules shall not enable the Appeal Tribunal to order the payment of costs or expenses by any party to proceedings before the Appeal Tribunal."
[65]We note that section 34 has been substituted by the Employment Act 2002 section 23 which is drafted in much broader terms and leaves it to the rules to determine when an order of costs is to be made, subject to a particular provision in 23(2) regarding ability to pay.[66]Rule 34 of the Employment Appeal Tribunal Rules, 1993 provides:
"(1) Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable delay or other unreasonably conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses occurred by that other party in connection with the proceedings."
[67]In contrast to section 34, section 13 of the Employment Tribunals Act 1996 provides that Employment Tribunal procedure regulations may include provision for the award of costs.[68]Regulation 14 of the Employment Tribunals (Constitution etc) Regulations 2001, provides that a Tribunal in effect limits the making of an order of costs against a party unless the party has "acted vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by a party has been misconceived".[69]In the course of the hearing we heard argument about whether or not this Tribunal had the power to make an award of costs in connection with a hearing before the Tribunal. Certainly the rule could be read to apply to the whole proceedings but it seems to us (although this point was not taken by Ms Machin), that a reading of section 34(2) of the Employment Tribunals Act,1996 makes it clear that the words "the proceedings" in 34 (1) refer to proceedings before the Appeal Tribunal. That view is fortified by the fact that the tests for an award of costs before the Employment Tribunal and this Tribunal under the primary legislation and secondary legislation are different. We note that section 35 gives this Tribunal the power to exercise any of the powers of the Employment Tribunal but we do not think that is sufficient to give us the power to make an order in relation to the costs of the hearings before the Employment Tribunal itself.[70]It follows that, in our judgment, we have no power to make an order for costs in relation to the proceedings before the Employment Tribunal. That is a conclusion which we reach reluctantly and is, we accept, contrary to the view we expressed at the hearing.[71]Unlike other cases before the Employment Appeal Tribunal the application to this Tribunal is a final and necessary stage in the resolution of the Applicant's case. She is obliged to bring her claim for compensation before this Tribunal. Given that it is not always easy to make an award of costs until one knows the outcome of the proceedings including the amount of any compensation ordered, it would be much more desirable if this Tribunal had the power, if it chose to do so, to order costs in relation to the hearings below.[72]In so far as the hearing is concerned held in March 2002, as we have already noted, the costs were reserved. We invite the Tribunal which decided in favour of the Applicant on the merits in January 2003 (or, if need be, another Tribunal) now to consider whether the Applicant should be awarded costs in connection with the hearing in March 2002 and the costs of the hearing on the merits. We note that in a letter dated 17 January 2003 the Respondent's solicitors offered £1000 prior to the hearing on the merits and said that the Respondent reserved the right to claim costs in the event of the Applicant failing.[73]The Tribunal may take the view that it is understandable that no application was made at the time given that the proceedings had not been completed until an award of compensation had been made. If any extension of time is necessary we invite the Tribunal to grant it. We ask Mr Bourne, with Ms Machin, to draw up an order which will reflect or refer to this paragraph.[74]We now turn to the costs incurred by the Applicant in bringing this appeal. We have already set out the terms of section 34 and rule 34. At the conclusion of the hearing, having announced an award of compensation of £12000, we asked Mr Bourne, whether any offer, even the minimum offer, had been made by the Respondent. He said that no such offer had been made and Ms Machin did not dissent. In its Notice of Appearance in the proceedings before this Tribunal, the respondent wrote: "The Respondent resists the application by the applicant for an award of compensation on the grounds that Mrs Forcer cannot be re-admitted to membership of the BFAWU in that she is no longer eligible for membership and that she contributed to the unjustifiable discipline ...".[75]The proposition that the Applicant is not eligible for membership had been rejected by the Tribunal and not appealed. The decision by Mr Marino to this effect on the second day of the hearing had not been revealed until shortly before the hearing before us. In any event, the alleged ineligibility for membership does not justify non-payment of compensation.[76]We have already held that the Respondent's submission that the Applicant had caused or contributed to the infringements were without merit. We go further and hold that they were totally devoid of any merit and ought never to have been put forward. In the absence of not only any offer, but any sensible offer to resolve these proceedings, we take the view that the Respondent's conduct in conducting the proceedings before the Employment Appeal Tribunal has been unreasonable. We unanimously order that the Respondent must pay the Applicant's costs of, and preparatory to, the application, such costs to be assessed if not agreed.